For patients, appointing an attorney or activating an established one are significant steps, as they can result in loss of autonomy or dignity.
A person can make an EPOA only if they have sufficient mental capacity to understand what it is and what its effect will be. For patients, appointing an attorney or activating an established one are significant steps, as they can result in loss of autonomy or dignity.
Although the Protection of Personal and Property Rights Act 1988 sets out the legal test for mental incapacity, it does not set out a test for capacity to appoint an attorney. However, a good guide is the common law test for competence — that a person must be able to understand the nature of decisions, foresee the consequences of those decisions, and communicate them.
In this case, the GP presumed that what was required was a letter to certify the woman’s lack of mental capacity to make decisions. The GP completed a medical certificate stating that the woman did not have mental capacity, but did not undertake a formal assessment of the woman’s mental capacity.
Subsequently, the woman’s partner returned to the medical centre and told the GP that the first certificate was not what his solicitor required.
The GP contacted the solicitor for clarification, and concluded that she needed to certify that the woman did have the mental capacity to appoint an EPOA. The GP completed a medical certificate confirming that the woman had mental capacity. The GP did this despite being of the opinion that the woman lacked the requisite mental capacity.
The woman went on to appoint her partner as her EPOA. Subsequently, the EPOA was activated, and the partner moved the woman to a rest home against the wishes of her children.
Health and Disability Commissioner Morag McDowell found that by failing to perform a formal assessment of mental capacity to appoint an enduring power of attorney, and certifying the woman’s capacity to appoint one contrary to her own opinion, the doctor failed to provide services to the woman that complied with legal and professional standards. The Commissioner found the GP in breach of Right 4(2) of the Code.
The Commissioner’s recommendations included that the doctor attend at least three seminars or courses on the topic of completing mental capacity documentation, arrange for peer review of the next three mental capacity documents she signs, and provide a written apology to the woman’s family. “Doctors need to be familiar with the process and requirements for certifying whether a patient has the mental capacity to appoint an enduring power of attorney,” said Ms McDowell.
“I have recommended that the district health board consider creating an educational booklet for GPs to help them with their assessments.”
The full report on case 20HDC00126 is available here.